BEHIND THE LENS…
Behind the glamour, the excitement and the grandeur of ‘showbiz’ lies another reality confronting those who work in it. For the entertainment world is composed not just of the ‘talents’ you see on the screen or stage; there are also those who work out of sight, behind the scenes, helping to deliver quality entertainment. And although both this group of people and the celebrities we know and (sometimes!) love are part of the same show or project, they have varying rights and statuses under the law.
In the landmark case of Jose Y. Sonza vs. ABS-CBN Broadcasting Corporation, G.R. No. 138051. June 10, 2004, the Supreme Court declared that not every service rendered for a fee creates an employer-employee relationship. “To hold that every person who renders services to another for a fee is an employee – to give meaning to the security of tenure clause – will lead to absurd results.”
To determine whether a person rendering services to another is an employee the most common test is the so called “Four-fold Test”, to wit:
Right to hire or to the selection and engagement of the employee;
Payment of wages and salaries for services;
Power of dismissal or the power to impose disciplinary actions; and
Power to control the employee with respect to the means and methods by which the work is to be accomplished. This is known as the “Control test”.
The most compelling of the four in determining whether a talent is an employee or an independent contractor is the control test. “The more supervision and control the hirer exercises, the more likely the worker is deemed an employee. The converse holds true as well – the less control the hirer exercises, the more likely the worker is considered an independent contractor.”
In any event the method of selecting and engaging a talent or an individual does not conclusively determine his status. All the circumstances of the relationship, with the control test being the most important element, must be considered. The unique skills, talent and celebrity status not possessed by ordinary employees, is a circumstance indicative, but not conclusive, of an independent contractual relationship.
Hence, a talent or a celebrity is an independent contractor offering not mere labor but his/her unique skills to entertain his audience.
THE TEAM BEHIND THE SCENES…
As to the members of the production team or those working behind the scenes, instructive is the case of ABS-CBN Broadcasting Corporation vs. Nazareno et. al. G.R. No. 164156., September 26, 2006. The High Court elucidated that “when the work done is an integral part of the regular business of the employer and when the worker, relative to the employer, does not furnish an independent business or professional service, such work is a regular employment of such employee and not an independent contractor.”
The said rule is likewise in conjunction with the four-fold test. In this case, the Honorable Supreme Court ruled that the employees were selected through ABS-CBN’s personnel department without regard to their special talent or unique skills; they were paid their wages and they did not have the power to bargain for a higher “talent fee”; their continued employment was subject to the will of their employer; and they were under the constant control of their supervisors. Thus, the presence of these factors taken together with the very definition of regular employees under the Labor Code, bolstered the status of Nazareno, et al. as regular employees.
The difference in the employment status of talents/celebrities from the people working behind the scenes is crucial in determining the law applicable to their situation.
The Law on Contracts particularly governs the relationship between the talent and the one engaging their services. The provisions of the engagement contracts shall as long as not contrary to law, morals, good customs, public policy, and public order shall be complied with. Any issue or dispute arising from such engagement shall be cognizable by the Regular Courts.
On the other hand, an employee’s relationship with their employer is governed by the Labor Code as amended, Implementing Rules issued by the Department of Labor and other pertinent government agencies, as well as special laws in relation to labor. Employees are also covered by the provisions of the Collective Bargaining Agreement (CBA) with employers. Any dispute in relation to the employee and employer relationship shall be cognizable by the Labor Arbiter, the National Labor Relations Commission (NLRC) and other quasi-judicial and quasi-administrative agencies.
THE CLOSING CREDITS…
In drafting the pertinent contracts, be it for an independent contractor or for a regular employee, the parties should be mindful of the applicable provisions of the law on Contracts, that“[t]he contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” and the basic precept under the Constitution – “The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.”
Mc Antony M. Liggayu
Photography by Jakob Owens @ unsplash